A medical marijuana Q&A

Eric Misterovich is an attorney specializing in the Michigan Medical Marihuana Act with The Hubbard Law Firm, P.C. in Lansing

What are the legal risks associated with medical marihuana?

The possession of marihuana violates federal law. However, the likelihood of federal prosecution against an average patient or caregiver is low. In fact, the U.S. Attorney General’s Office has directed federal attorneys that prosecuting individuals acting in “clear and unambiguous compliance” with state medical marihuana laws is not a wise use of their resources.

But risks are also present at the state and local levels, largely due to the law’s inconsistent application. For example, a Ferndale district court judge allowed licensed defendants to use marihuana while on probation while a Waterford district judge denied such use. Without a clear, statewide answer, the treatment a patient or caregiver will receive may depend on his or her location.

Further, cities, townships and villages are enacting their own medical marihuana regulations, creating a patchwork of rules. One municipality might not regulate the cultivation of marihuana at all, another might limit the number of plants allowed in an apartment, and another might attempt to ban marihuana based on federal law. To avoid these risks, you must be knowledgeable about your local regulations.

I submitted my application, my check has been cashed, but I have not received my Registry Identification Card. Can I legally possess and use marihuana?

The Department of Community Health is required to approve or deny an application within 15 days of receiving it. Further, the department must issue the registry identification card within five days of approving it. However, the department is severely behind schedule and not issuing cards within this time frame.

Section 9(b) of the Michigan Medical Marihuana Act provides that if the department fails to issue a card within 20 days after the submission of a valid application, the card “shall be deemed granted, and a copy of the [application] shall be deemed a valid … .”

If your application contained the required information and 20 days passed since the department received it, a copy of your application serves as your card. You may now possess and use marihuana in accordance with the act. You may wish to send your application through certified mail and maintain multiple copies of your application, cashed check and certificate of mailing.

What should I be aware of when growing marihuana?

First, a caregiver or patient may only grow marihuana in an “enclosed locked facility.” The act defines this to mean “a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient.”

This definition does not necessarily require all growing be done indoors, but some local ordinances prohibit outdoor growing. It is best to contact your local municipality to determine if such an ordinance is in place.

Second, do not exceed the number of plants you are permitted to grow. There have been many creative arguments for what constitutes a plant. Do not fall into this trap. Use common sense and count plants like a police officer would count them. If you are wondering if that constitutes a plant, play it safe and assume it does.

What is a dispensary and is it legal?

The term “dispensary” is never mentioned in the act. Some argue that without express authorization, “dispensaries” are prohibited. On the other hand, some argue the absence of an express prohibition means they are permitted. What both camps fail to realize is that the term “dispensary,” on a statewide level, is meaningless, although municipalities have attempted to define the term in local zoning ordinances. The legality of “dispensaries” depends not on the label the building is assigned, but rather, on the specific activities being engaged in and whether the individuals involved are authorized to do so.

Are patient-to-patient transfers legal?

Some argue that patient-to-patients transfers are prohibited. In support, and similar to the argument regarding “dispensaries,” this argument usually relies on the act’s silence regarding the specific activity involved. After all, the act exempts a narrow class of people and activities from the standard criminal penalties associated with cultivating and possessing marihuana. If the act intended to allow such a transaction, it should have expressly stated so.

On the other hand, it seems the act’s plain language permits patient-to-patient transfers. The argument is as follows. Pursuant to Section 4(b), patients are “not subject to arrest…or penalty in any manner…for the medical use of marihuana in accordance with this Act.” “Medical use” is defined to include “the acquisition…delivery [or] transfer of marihuana….”

Based on this definition, it seems the patient on both ends of a patient-to-patient transfer is authorized to engage that activity. A transferring patient is engaged in the “medical use” when transferring marihuana. A receiving patient is engaged in the “medical use” when acquiring marihuana. Provided both patients abide by the Act’s other provisions, they receive the protections of Section 4(b) and are “not subject to arrest....”

However, this issue has not been decided by the courts, and without such guidance, it is difficult to definitively state whether patient-to-patient transfers are legal. A clear answer to this question is long overdue.

What is the future of medical marihuana in Michigan?

Medical marihuana invokes passionate responses. The pro-medical marihuana contingent worked hard to place the law on the ballot, believes in treating pain with cannabis rather than pharmaceuticals and does not want elected officials changing a law the people overwhelmingly approved. At the other end of the spectrum, many believe the act is designed to encourage the outright legalization of marihuana, is too easily abused and must be clarified.

The problem is that legislative amendments to the act will be difficult, if not impossible. Michigan’s Constitution requires a three-forths vote from both the Michigan House and Senate to amend a citizen-initiated law. With politics as usual, such consensus is unlikely.

It is more likely that the attorney general will take a lead role in attempting to clarify some of the issues addressed above. This places additional importance on the race between Democrat candidate David Leyton, Republic candidate Bill Schuette and Independent candidate Daniel Grow.